Citation Nr: 21064845
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 15-06 712
DATE: October 21, 2021

ORDER

Service connection for accrued purposes for multiple myeloma, claimed as due to radiation and/or chemical exposure is denied.

Service connection for the cause of the Veteran's death is denied.

FINDINGS OF FACT

1. The Veteran's multiple myeloma was not related to ionizing radiation exposure during service and is not otherwise related to military service.

2. The Veteran's death was not related to a disability that was service-connected or eligible for service connection.

CONCLUSIONS OF LAW

1. The criteria for service connection for multiple myeloma are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309, 3.311, 3.312.

2. The criteria for entitlement to service connection for the cause of the Veteran's death are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.311, 3.312.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active military service from December 1976 to December 1979. The Veteran passed away in July 2012, and the appellant is the Veteran's wife.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In August 2017, the Appellant testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file.

The Board remanded this appeal in December 2018 and June 2020 for further development. The requested actions have been completed by the AOJ, with no further action necessary to comply with the Board's remand directives, so this case is once again before the Board for further appellate consideration. The Board therefore find substantial compliance with the June 2020 remand as the requested actions has been conducted. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

1. Entitlement to service connection for multiple myeloma, claimed as due to radiation and/or chemical exposure is denied.

The Appellant contends that the Veteran is entitled to service connection for multiple myeloma as a result of exposure to ionizing radiation. Specifically, the Veteran contended that he was exposed to ionizing radiation when he performed security duties of guarding nuclear weapons while onboard of the USS Constellation. His job was to guard all nuclear weapons stored aboard the ship and was in close proximity when they were moved from storage to flight deck. See December 2010 Application for Compensation.

Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), (b) and (d).

Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996).

First, there are specific diseases, such as multiple myeloma, which may be presumptively service connected if manifest in a radiation-exposed Veteran. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A radiation-exposed Veteran is one who participated in a radiation-risk activity. A radiation-risk activity includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure.

Second, another set of radiogenic diseases, including multiple myeloma, found five years or more after service in an ionizing radiation-exposed veteran may be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. 38 C.F.R. § 3.311(b)(2). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest 5 years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. § 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1).

Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Initially, the Board notes that the claim for service connection for multiple myeloma was initiated by the Veteran in December 2010. Unfortunately, the Veteran died in July 2012.

Subsequent to the Veteran's death, in December 2013, the Appellant filed an application for DIC, death pension, and/or accrued benefits. The record reflects that the Veteran was diagnosed with multiple myeloma in 2007. 

Service treatment records are silent for any complaints, symptoms, treatment, or diagnoses of multiple myeloma.

Next, the Board notes that the evidence does not show, and the Appellant does not contend, that multiple myeloma was shown as chronic in service, that it became manifest to a compensable degree within a year of his discharge from service, or that there has been a continuity of related symptomatology since service. Post-service treatment records show that he was diagnosed with multiple myeloma in 2007. Accordingly, as multiple myeloma is one of the specified radiogenic diseases under 38 C.F.R. § 3.311(b)(2) and was diagnosed approximately thirty years after initial presumed exposure, the Board remanded for referral to the Under Secretary for Health for a preparation of a dose estimate pursuant to the guidelines in 38 C.F.R. § 3.311(a)(2)(iii).

In January 2012, the Department of the Navy, Naval Dosimetry Center stated that a review of their exposure registry revealed no reports of occupational exposure to ionizing radiation pertaining to the Veteran. A January 2012 response indicates that there are no records of exposure to herbicides. A May 2012 memorandum, indicates that the JSSRRC has found no evidence that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Additionally, the JSRRC cannot document or verify that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. Therefore, the JSRRC can provide no evidence to support a Veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era.

Pursuant to the June 2020 Board remand, in August 2020, the Director of Compensation Benefits (USB) requested an opinion from the Under Secretary for Health (USH) to determine whether it is likely, unlikely, or as likely as not that the Veteran's multiple myeloma resulted from exposure to radiation in service. In August 2020, the Director, Post-9/11 Environmental Health Service opined that it was unlikely that the Veteran's multiple myeloma was caused by exposure to ionizing radiation while in miliary service. In August 2020 and based on the opinion provided on behalf of the Under Secretary of Health, USB determined that there was no reasonable possibility that the Veteran's multiple myeloma can be attributed to ionizing radiation exposure during military service. 

In this regard, the memorandum noted the Veteran's contentions of exposure to radiation from his two years of security detail of guarding nuclear weapons while onboard the USS Constellation (CV-64). Specifically, that contended that his job was to guard all nuclear weapons stored aboard the ship and was in close proximity when they were moved from storage to flight deck. The memorandum also noted that his service personnel records confirm he performed duties as a guard on the USS Constellation. Further it noted that a January 2012 letter from the Naval Dosimetry Center found a review of their exposure registry revealed no reports of occupational exposure to ionizing radiation for the Veteran.

The August 2020 memorandum noted that an occupationally exposed worker is not expected to receive a radiation dose exceeding 1/10 of the annual limit of 5 rem per year (i.e. 0.5 rem). Therefore, they gave the Veteran the benefit of the doubt that he was in fact exposed to ionizing radiation, and assigned a dose estimate of 1.5 rem for the total of the 3 calendar years of service with potential exposure to radiation (1977 to 1979). They then noted the Health Physics Society position statement PS010-4, Radiation Risk in Perspective, revised in February 2019, which states that "The average annual equivalent dose from natural background radiation in the United States is about 3 mSv [0.3 rem]. A person might accumulate an equivalent dose from natural background radiation of about 50 mSv [5 rem] in the first 17 years of life and about 250 mSv [25 rem] during an average 80-year lifetime. Substantial and convincing scientific data show evidence of health effects following high-dose exposures (many multiples of natural background); however, below levels of about 100 mSv [10 rem] above background from all sources combined, the observed radiation effects in people are not statistically different from zero."

Accordingly, as the Veteran's assigned lifetime total radiation dose of 1.5 rem did not exceed 10 rem above natural background, they opined it is unlikely that multiple myeloma was caused by exposure to ionizing radiation during military service. In so finding, they noted the Veteran's medical history, including the onset date of multiple myeloma in relation to the exposure to radiation, as well as his demographic history, that he was a nonsmoker and had no known post-service exposure to radiation.

Thereafter, in an August 2020 memorandum, the Director opined that based on the scientific evidence referenced in the memorandum from the VA Under Secretary for Health, and after a review of the evidence in its entirety, there is no reasonable possibility that multiple myeloma can be attributed to ionizing radiation exposure during military service. In reaching such opinion, the Director included nearly all the findings from the Under Secretary of Health. In doing so, the Director considered a variety of factors pursuant to 38 C.F.R. § 3.311(e) (noting that consideration must be given to (1) "The probable dose, in terms of dose type, rate and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation;" (2) "The relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology;" (3) "The veteran's gender and pertinent family history;" (4) "The veteran's age at time of exposure;" (5) "The time lapse between exposure and onset of the disease; and" (6) "The extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease."). The Under Secretary for Benefits need not explicitly discuss each of the six factors in the advisory opinion, but rather, consult with these factors as a point or reference in making a recommendation to the RO. Stone v. Gober, 14 Vet. App. 116, 120 (2000) (citing Hilkert v. West, 12 Vet. App. 145, 149-50 (1999) (en banc)). Consequently, the Board finds that the directives under 38 C.F.R. § 3.311(e) have been essentially complied with, and as the VA Under Secretary for Benefits did not find the Veteran's multiple myeloma was related to his in-service ionizing radiation exposure, or otherwise linked medically to ionizing radiation exposure while in service, and there is no other medical evidence to the contrary; the Board finds service connection for multiple myeloma is not warranted as a radiogenic disease.

Thus, the third and final remaining avenue of service connection is that direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service. See Combee v. Brown, 34 F.3d 1043-44 (Fed. Cir. 1994). As noted previously, the Veteran first manifested multiple myeloma years after his alleged first exposure to radiation. However, the Appellant contends that the Veteran's herbicide and chemical exposure from his military service caused his multiple myeloma.

In a July 2012 VA medical opinions for thoracolumbar spine, left knee and neck disabilities, the VA examiner opined that the Veteran's disabilities were not related to his military service as the Veteran only began to experience widespread musculoskeletal pain after the onset of the diagnosis of multiple myeloma. On the multiple myeloma, the VA examiner reasoned that it is a malignant degenerative disease of bone and not likely related to an event in service, that there are no known exposure events in service to which cause of this cancer can be linked and therefore, this condition is not likely related to any event in service.

In November 2011, the Veteran submitted a letter from his VA physician. Dr. S.A. stated, "[i]n my opinion, the patient's stated exposure to Agent Orange during his service in the Military had a significant role in causing this rare malignancy that cannot be cured."  No further rationale for this opinion was provided. 

In a September 2020 opinion, a VA examiner opined that it was less likely than not that his multiple myeloma was incurred in or otherwise attributable to service. In support thereof, the examiner referenced to an internet article and stated that "[a]lthough evidence of toxin/radiation exposure is primarily tethered to the history, it is irrelevant when there cannot be a causation link between this occupational/military pursuit and the etiology of the [multiple myeloma].  "Case-controlled studies have suggested a significant risk of developing [multiple myeloma] in individuals with significant occupational exposures in the agriculture, food, and petrochemical industries. An increased risk has been reported in farmers, especially in those who use herbicides and insecticides (e.g., chlordane), and in people exposed to benzene and other organic solvents. There is conflicting evidence regarding long-term (>20 y) exposure to hair dyes and possible increased risk of developing MM. [16]" "Radiation may play a role in some patients. An increased risk has been reported in atomic-bomb survivors exposed to more than 50 Gy: In 109,000 survivors of the atomic bombing of Nagasaki during World War II, 29 died from multiple myeloma between 1950 and 1976. Some more recent studies, however, do not confirm that these survivors have an increased risk of developing multiple myeloma. A study of workers at the Oak Ridge Diffusion Plant in eastern Tennessee showed only a weak correlation of risk of multiple myeloma to uranium exposure. [18]" Therefore, absent speculation, there is no support for a "more likely than not" linkage between MM and military service."

The Board notes that there are conflicting medical opinions of record addressing the possibility of a relationship regarding service connection on a direct basis. In this regard, the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993).

Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993).

In light of the foregoing, the Board finds that service connection on a direct basis for multiple myeloma, is not warranted. In this regard, the Board finds that the July 2012 and September 2020 VA medical opinions are more probative than the November 2011 medical opinion. Regarding the November 2011 opinion of Dr. S.A. that the Veteran's stated exposure to Agent Orange caused his multiple myeloma, this opinion used speculative language and the examiner did not support it with an adequate rationale. See Warren v. Brown, 6 Vet. App. 4 (1993). Therefore, the Board gives the opinion of Dr. S.A. little probative weight. A medical opinion based on an inaccurate factual premise is not probative. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or that are contradicted by other facts of record). 

As noted above, the Veteran was not presumed to have been exposed to herbicide exposure during his service and it has been determined that while the Veteran was exposed to ionizing radiation in service and dose estimates were obtained, the probative evidence of record reflects that it is very unlikely that the Veteran's multiple myeloma is attributable to this exposure.

In contrast, the September 2011 VA examiner had the benefit of a review of the Veteran's claims file and provided a more detailed rationale than the July 2011 VA examiner. The September 2011 VA examiner also specifically addressed the Veteran's contentions in determining that his prostate disability was not the result of in-service exposures.

For these reasons the Board finds the July 2012 and September 2020 VA examiner's opinions to be probative regarding the issue of whether the Veteran's multiple myeloma is related to service on a direct basis. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence.") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, supra, (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Based on the foregoing, the Board has placed greater probative weight on the July 2012 and September 2020 VA opinions, which finds against service connection.

In reaching this decision, the Board recognizes that the Veteran and the Appellant are competent to report certain symptoms and even diagnose certain conditions which are apparent through the senses. See Layno v. Brown, 6 Vet. App. 465 (1994). However, as the question of the origin or cause of multiple myeloma, such is not a simple question that can be determined based on mere personal observations by a lay person, and thus the Appellant's lay testimony is not competent to establish a medical etiology or nexus. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the etiology of multiple myeloma does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. Here, it is not shown that the Veteran or the Appellant are otherwise qualified through specialized education, training, or experience to offer a medical opinion as to the etiology of this disability. 38 C.F.R. § 3.159(a). Therefore, their assertions regarding the etiology of the Veteran's multiple myeloma are not afforded probative weight.

In summary, the Board finds the Veteran's multiple myeloma was not shown to be causally or etiologically related to any disease, injury, or event during service, to include his conceded exposure to ionizing radiation, and did not manifest within one year of his service discharge. Therefore, service connection for multiple myeloma is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Appellant's claim for service connection. As such, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.R.F. § 3.102.

1. Entitlement to service connection for the cause of the Veteran's

As discussed above, the Appellant claims the Veteran's cause of death was the result of in-service radiation exposure, which caused the Veteran to develop multiple myeloma.

To establish entitlement to service connection for the cause of the Veteran's death, the evidence must show that a disability either incurred in or aggravated by his military service, or which was proximately due to, the result of, or aggravated by a service-connected condition, was either a principal or contributory cause of death. 38 U.S.C. §§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. 

A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.

Here, the Veteran's death certificate identified end stage metastatic multiple myeloma as his sole cause of death. As the Board has denied service connection for multiple myeloma, as due to ionizing radiation exposure in the findings above, service connection for the cause of the Veteran's death is not warranted.

Therefore, service connection for cause of death is denied.

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Romero-Sanchez, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.